2020 (6) TMI 428 - AT - Income Tax

Tribunal orders reassessment, emphasizes accurate TP analysis

The Tribunal set aside the orders for both assessment years, directing a fresh TP analysis with appropriate comparables and operating cost considerations. ... TP Adjustment - comparable selection - HELD THAT:- All the companies selected by the TPO are liable to be excluded on the basis of turnover filter applied by the ld. DRP and the decision rendered by the Co-ordinate Benches. Since no comparable company would remain for determining the Arms Length Price of international transaction, we are of the view the entire issue should be restored to the file of the AO/TPO for undertaking the exercise afresh by selecting fresh set of comparable companies in respect of sotware R & D segment. Accordingly we set aside the order passed by the AO/TPO on this issue and restore the same to his file for examining the issue afresh. TP adjustment in respect of market support service - HELD THAT:- As A.R submitted that the TPO did not provide sufficient opportunity to the assessee to object to the comparable companies selected by him, we are of the view that this issue also needs to be set aside to the file of the AO/TPO. Accordingly, we set aside the order passed by AO on this issue and restore the same to the file of the AO/TPO. Computation of ALP on the entire operating costs - whether arm’s length price ought to be computed only for the international transactions and not on the basis of costs incurred by the appellant? - HELD THAT:- PLI adopted by the assessee is operating profit by operating cost. The operating revenue has been generated by the assessee during the first two months namely April & May, 2004 only. So we find merit in the contentions of the assessee that the operating cost relatable to the operating revenue generated by the assessee should alone be considered for computing operating margin for the purpose of determining Arm’s length price of the international transactions. Considering the expenses incurred by the assessee in subsequent months, where no revenue was generated, would result in distorted picture. Hence there is merit in the contentions of ld. AR that the expenditure incurred during the first two months should alone be considered for arriving at the profit, in view of the fact that the assessee has stopped the operations in the month of May - we hold that the TPO was not justified in considering the operating results of the whole year for computing operating margins of the assessee. We notice that the workings furnished by the assessee for the first two months of the year have not been examined by the AO/TPO and hence the same requires examination in the light of discussions made supra. Accordingly, we restore this issue to the file of the AO/TPO for determining the operating margins of first two months by considering the operating revenue and operating cost of the first two months only in accordance with the discussions made supra. Appeals of the assessee are treated as allowed for statistical purposes. Issues:1. Transfer Pricing (TP) adjustment in Software Development Segment and Marketing Support Services Segment for the assessment year 2011-12.2. Application of turnover filter in selecting comparable companies for TP analysis.3. Exclusion of companies with turnover exceeding 200 Crores from comparability analysis.4. TP adjustment in Market Support Services Segment for the assessment year 2013-14 based on operating margins.5. Computation of operating margins based on relevant operating costs for international transactions.Analysis:Issue 1: Transfer Pricing Adjustment (TP) - Software Development Segment and Marketing Support Services Segment (AY 2011-12)- The assessee contested TP adjustments made by the TPO in both segments.- The TP study adopted TNMM method for software development segment and selected comparables for marketing support services.- The LD DRP applied a turnover filter and excluded certain companies based on turnover criteria.- The AO did not exclude companies as directed by the LD DRP, leading to sustained TP adjustment.- The Tribunal held that all selected comparable companies should be excluded due to turnover filter and directed the AO/TPO to reevaluate the TP analysis with fresh comparables.Issue 2: Application of Turnover Filter and Exclusion Criteria- The LD DRP applied a turnover filter, excluding companies with turnover exceeding 200 Crores.- The assessee argued for the exclusion of seven companies based on turnover criteria and judicial precedents.- The Tribunal agreed that all selected companies should be excluded, necessitating a fresh TP analysis with new comparables.Issue 3: TP Adjustment - Market Support Services Segment (AY 2013-14)- The assessee challenged the TP adjustment in market support services based on operating margins.- The TPO computed operating margins using annual costs, while the assessee proposed considering costs related to revenue generated in the first two months.- The Tribunal agreed with the assessee, directing the AO/TPO to compute operating margins based on relevant costs for the first two months only.Conclusion:- The Tribunal set aside the orders for both assessment years, directing a fresh TP analysis with appropriate comparables and operating cost considerations.- The appeals of the assessee were treated as allowed for statistical purposes, emphasizing the importance of accurate TP analysis and exclusion criteria compliance.